As filed with the Securities and Exchange Commission on November 20, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXPAND ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
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Oklahoma
(State or other jurisdiction of
incorporation or organization)
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73-1395733
(I.R.S. Employer
Identification Number)
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6100 North Western Avenue
Oklahoma City, OK 73118
(405) 848-8000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Chris Lacy
Executive Vice President, General Counsel, and Corporate Secretary
6100 North Western Avenue
Oklahoma City, OK 73118
(405) 848-8000
(Address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Kevin M. Richardson
Ryan J. Lynch
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
(713) 546-5400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
EXPAND ENERGY CORPORATION
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Units
We may offer and sell the securities identified above from time to time in one or more offerings. This prospectus provides you with a general description of the securities.
Each time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering and the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” ON PAGE 7 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our common stock is listed on the Nasdaq Global Select Market under the symbol “EXE.” On November 19, 2024, the last reported sale price of our common stock on the Nasdaq Global Select Market was $95.71 per share.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 20, 2024.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”), as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings as described in this prospectus. Each time that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
We have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus and the applicable prospectus supplement. Accordingly, investors should not place undue reliance on this information.
Additional information, including our financial statements and the notes thereto, is incorporated in this prospectus by reference to our reports filed with the SEC. Please read “Where You Can Find More Information; Incorporation by Reference” below. You are urged to read this prospectus carefully, including “Risk Factors,” and the documents incorporated by reference in their entirety before investing in our securities.
When we refer to “Expand Energy,” “we,” “our,” “us” and the “Company” in this prospectus, we mean Expand Energy Corporation and its consolidated subsidiaries, unless otherwise specified. When we refer to “you,” we mean the potential holders of the applicable series of securities.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including documents incorporated herein by reference, includes “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”). Forward-looking statements include our current expectations or forecasts of future events, including matters relating to the Merger (as defined in the section of this prospectus entitled “Our Company”), armed conflict and instability in Europe and the Middle East, along with the effects of the current global economic environment, and the impact of each on our business, financial condition, results of operations and cash flows, market factors, market prices, our ability to meet debt service requirements, our ability to continue to pay cash dividends, the amount and timing of any cash dividends, and our environmental, social and governance (“ESG”) initiatives. Forward-looking and other statements in this prospectus regarding our environmental, social and other sustainability plans and goals are not an indication that these statements are necessarily material to investors or required to be disclosed in our filings with the SEC. In addition, historical, current, and forward-looking environmental, social and sustainability-related statements may be based on standards for measuring progress that are still developing, internal controls and processes that continue to evolve, and assumptions that are subject to change in the future. Forward-looking statements often address our expected future business, financial performance and financial condition, and often contain words such as “expect,” “could,” “may,” “anticipate,” “intend,” “plan,” “ability,” “believe,” “seek,” “see,” “will,” “would,” “estimate,” “forecast,” “target,” “guidance,” “outlook,” “opportunity” or “strategy.”
Although we believe the expectations and forecasts reflected in our forward-looking statements are reasonable, they are inherently subject to numerous risks and uncertainties, most of which are difficult to predict and many of which are beyond our control. No assurance can be given that such forward-looking statements will be correct or achieved or that the assumptions are accurate or will not change over time. Particular uncertainties that could cause our actual results to be materially different than those expressed in our forward-looking statements include:
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conservation measures and technological advances could reduce demand for hydrocarbons;
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negative public perceptions of our industry;
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competition in the natural gas and oil exploration and production industry;
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the volatility of natural gas, oil and natural gas liquids (“NGL”) prices, which are affected by general economic and business conditions, as well as increased demand for (and availability of) alternative fuels and electric vehicles;
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risks from regional epidemics or pandemics and related economic turmoil, including supply chain constraints;
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write-downs of our natural gas and oil asset carrying values due to low commodity prices;
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significant capital expenditures required to replace our reserves, sustain production and conduct our business;
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uncertainties inherent in estimating quantities of natural gas, oil and NGL reserves and projecting future rates of production and the amount and timing of development expenditures;
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drilling and operating risks and resulting liabilities;
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our ability to generate profits or achieve targeted results in drilling and well operations;
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leasehold terms expiring before production can be established;
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risks from our commodity price risk management activities;
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uncertainties, risks and costs associated with natural gas and oil operations;
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our need to secure adequate supplies of water for our drilling operations and to dispose of or recycle the water used;
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pipeline and gathering system capacity constraints and transportation interruptions;
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our plans to participate in the liquefied natural gas export industry;
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terrorist activities and/or cyber-attacks adversely impacting our operations;
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risks from failure to protect personal information and data and compliance with data privacy and security laws and regulations;
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disruption of our business by natural or human causes beyond our control;
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a deterioration in general economic, business or industry conditions;
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the impact of inflation and commodity price volatility, including as a result of armed conflict and instability in Europe and the Middle East, along with the effects of the current global economic environment, on our business, financial condition, employees, contractors, vendors and the global demand for natural gas and oil and on U.S. and global financial markets;
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our inability to access the capital markets on favorable terms;
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the limitations on our financial flexibility due to our level of indebtedness and restrictive covenants from our indebtedness;
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risks related to acquisitions or dispositions, or potential acquisitions or dispositions, including risks related to the Merger, such as risks related to loss of management personnel, other key employees, customers, suppliers, vendors, landlords, joint venture partners and other business partners following the Merger; risks related to disruption of management time from ongoing business operations due to the transaction; the risk of any unexpected costs or expenses resulting from the transaction; the outcome of existing litigation and the risk of any further litigation relating to the transaction; the risk that problems may arise in successfully integrating the businesses of the companies, which may result in the combined company not operating as effectively and efficiently as expected; and the risk that the combined company may be unable to achieve synergies or other anticipated benefits of the transaction or it may take longer than expected to achieve those synergies or benefits;
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our ability to achieve and maintain ESG certifications, goals and commitments;
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legislative, regulatory and ESG initiatives, addressing environmental concerns, including initiatives addressing the impact of global climate change or further regulating hydraulic fracturing, methane emissions, flaring or water disposal;
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federal and state tax proposals affecting our industry;
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risks related to an annual limitation on the utilization of our tax attributes, as well as trading in our common stock, additional issuance of common stock, and certain other stock transactions, which could lead to an additional, potentially more restrictive, annual limitation; and
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other factors that are described under “Risk Factors” in our Annual Report on Form 10-K for the year ending December 31, 2023, filed with the SEC on February 21, 2024, and our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2024, filed with the SEC on October 29, 2024, or referenced in this prospectus.
We caution you not to place undue reliance on the forward-looking statements contained in this prospectus, which speak only as of the filing date, and we undertake no obligation to update this information. We urge you to carefully review and consider the disclosures in this prospectus and our other filings with the SEC that attempt to advise interested parties of the risks and factors that may affect our business.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our web site address is https://www.expandenergy.com/. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC (such documents filed prior to October 1, 2024 were filed under our former name prior to the Merger, Chesapeake Energy Corporation):
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Our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 21, 2024.
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The information specifically incorporated by reference into our Annual Report on Form 10-K from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 26, 2024.
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, June 30, 2024 and September 30, 2024, filed with the SEC on April 30, 2024, July 29, 2024 and October 29, 2024, respectively.
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Our Current Reports on Form 8-K filed with the SEC on January 11, 2024 (File No. 001-13726), April 5, 2024, June 6, 2024, June 18, 2024, September 26, 2024, October 1, 2024 (excluding Item 7.01 thereto), November 1, 2024, November 7, 2024 and November 15, 2024 (only with respect to the 8-K filing for Items 8.01 and 9.01 related to historical and pro forma financial and reserves information of Southwestern Energy Company and the Company).
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The description of our common stock (“Common Stock”) contained in Item 1 of the Registration Statement on Form 8-A, dated February 9, 2021, filed with the SEC on February 9, 2021 and any amendment or report filed with the SEC for the purpose of updating the description.
All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering but excluding any information furnished (but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, will also be incorporated by
reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
Expand Energy Corporation
Attention: Investor Relations
6100 North Western Avenue
Oklahoma City, OK 73118
(405) 848-8000
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
OUR COMPANY
General
Established through the combination of Chesapeake Energy Corporation (“Chesapeake”) and Southwestern Energy Company (“Southwestern”) (the “Merger”), Expand Energy is the largest independent natural gas producer in the United States, based on net daily production, and is focused on responsibly developing an abundant supply of natural gas, oil and NGLs to expand energy access for all. Our operations are located in Louisiana in the Haynesville/Bossier Shales, in Pennsylvania in the Marcellus Shale, and in West Virginia and Ohio in the Marcellus and Utica Shales.
Our strategy is to create shareholder value through the responsible development of our significant resource plays while continuing to be a leading provider of natural gas to markets in need. We continue to focus on improving margins through operating efficiencies and financial discipline and improving our ESG performance. To accomplish these goals, we intend to allocate our human resources and capital expenditures to projects we believe offer the highest cash return on capital invested, to deploy leading drilling and completion technology throughout our portfolio, and to take advantage of acquisition and divestiture opportunities to strengthen our portfolio. We also intend to continue to dedicate capital to projects that reduce the environmental impact of our production activities.
Corporate Information
Our principal executive offices are located at 6100 North Western Avenue, Oklahoma City, Oklahoma 73118, and our telephone number is (405) 848-8000. We maintain a website at https://www.expandenergy.com/. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus or the registration statement of which it forms a part.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. Before deciding whether to invest in our securities, you should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, including but not limited to, the matters addressed in the section titled “Cautionary Statement Regarding Forward-Looking Statements,” as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in or incorporated by reference in the applicable prospectus supplement and any applicable free writing prospectus. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our securities to decline, resulting in a loss of all or part of your investment. Please also carefully read the section entitled “Cautionary Statement Regarding Forward-Looking Statements” included in our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our certificate of incorporation, which has been publicly filed with the SEC. See “Where You Can Find More Information; Incorporation by Reference.”
The Third Amended and Restated Certificate of Incorporation of Expand Energy (the “Expand Energy Charter”) provides that the Company is authorized to issue 495 million shares of capital stock, divided into two classes consisting of (a) 450 million shares of common stock, par value $0.01 per share, and (b) 45 million shares of preferred stock, par value $0.01 per share.
As of November 18, 2024, there were 231,096,625 shares of Common Stock and 0 shares of preferred stock outstanding and 1,260,494, 3,099,093 and 3,680,062 Class A Warrants to purchase Common Stock (“Class A Warrants”), Class B Warrants to purchase Common Stock (“Class B Warrants”) and Class C Warrants to purchase Common Stock (“Class C Warrants”), respectively, outstanding (collectively, the “Warrants”).
Common Stock
Each holder of shares of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which shareholders generally are entitled to vote.
Subject to the rights of any then-outstanding shares of preferred stock, the holders of Common Stock may receive such dividends as the Board of Directors (the “Board”) may declare in its discretion out of legally available funds. Holders of Common Stock will be entitled to receive all of the remaining assets of the Company available for distribution to its shareholders, ratably in proportion to the number of shares of Common Stock held by them.
Voting Rights
Each holder of Common Stock is entitled to one vote for each share on all matters submitted to a vote of the shareholders, including the election or removal of directors.
The Third Amended and Restated Bylaws of Expand Energy (the “Expand Energy Bylaws”) provide that the number of directors which shall constitute the whole board of directors shall not be less than three (3) nor more than eleven (11), and shall be determined by resolution adopted by a vote of a majority of the entire Board then in office, or at an annual or special meeting of shareholders by the affirmative vote of at least a majority of the then outstanding shares of the Company’s capital stock entitled to vote thereon. No reduction in number shall have the effect of removing any director prior to the expiration of his term. No person may stand for election to, or be elected to, the Board or be appointed by the directors to fill a vacancy on the Board who shall have made, or be making, improper or unlawful use of the Company’s confidential information. All elections of directors shall be by written ballot unless otherwise provided in the Expand Energy Charter. However, if authorized by the board of directors in its sole discretion, the ballot may be submitted by electronic transmission, provided that any such electronic transmission must either set forth, or be submitted with, information from which it can be determined that the electronic transmission was authorized by the shareholder or proxyholder. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual meeting of shareholders and until his or her successor is duly elected and qualified, or until his or her earlier resignation or removal.
Dividends
The Board may from time to time declare, and the Company may pay, dividends (payable in cash, property or shares of the Company’s capital stock) on the Company’s outstanding shares of capital stock, subject to applicable law and the Expand Energy Charter and may be paid in cash, in property or in shares of the capital stock, or in any combination thereof.
Liquidation
Except as otherwise required by the Expand Energy Bylaws or Expand Energy Charter, the common stock will have all rights and privileges typically associated with such securities as set forth in the Oklahoma General Corporation Act (the “OGCA”) in relation to rights upon liquidation.
Preferred Stock
The Expand Energy Charter provides that shares of preferred stock may be issued from time to time in one or more series. The Board will be authorized to fix the voting rights, if any, designations, powers, preferences, the relative, participating, optional or other special rights and any qualifications, limitations and restrictions thereof, applicable to the shares of each series. The Board may, without shareholder approval, issue preferred stock with voting and other rights that could adversely affect the voting power and other rights of the holders of the Common Stock and could have anti-takeover effects. The ability of the Board to issue preferred stock without shareholder approval could have the effect of delaying, deferring or preventing a change of control of the Company or the removal of existing management. The Company has no preferred stock outstanding at the date hereof.
Warrants
Currently each holder of a Class A Warrant is entitled to purchase 1.22 shares of the Company’s Common Stock for $22.576 per share, each holder of a Class B Warrant is entitled to purchase 1.22 shares of the Company’s Common Stock for $26.254 per share, and each holder of a Class C Warrant is entitled to purchase 1.22 shares of the Company’s Common Stock for $29.562 per share, subject to certain adjustments. Warrants must be exercised for a whole share of Common Stock. The Warrants will expire on February 9, 2026, or earlier upon liquidation.
The Warrants have been issued in registered form pursuant to each applicable warrant agreement, by and between Equiniti Trust Company, as warrant agent, and us (each, a “Warrant Agreement”). You should review a copy of each applicable Warrant Agreement, which is filed as an exhibit to this prospectus, for a complete description of the terms and conditions applicable to the Warrants. Each Warrant Agreement provides that the terms of the Warrants may be amended without the consent of any holder to cure any ambiguity or to correct or supplement any defective provision, but any amendment, modification or waiver that adversely affects the interests of a holder of the applicable Warrant disproportionally relative to any other holder in any material respect requires the approval of each affected warrant holder.
In addition, if we, at any time while the Warrants are outstanding and unexpired, (i) declare a dividend or make a distribution on our Common Stock in Common Stock, (ii) split, subdivide, recapitalize, restructure or reclassify the outstanding Common Stock into a greater number of shares of Common Stock or effect a similar transaction or (iii) combine, recapitalize, restructure or reclassify the outstanding Common Stock into a smaller number of shares of Common Stock or effect a similar transaction, the number of shares of Common Stock issuable upon exercise of a warrant at the time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination, recapitalization, restructuring, reclassification or similar transaction shall be proportionately adjusted so that the applicable warrant holder, after such date, shall be entitled to purchase the number of shares of Common Stock which such warrant holder would have owned or been entitled to receive on such date had such applicable warrants been exercised immediately prior to such date. In such event, the exercise price in effect at the time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination, recapitalization, restructuring, reclassification or similar transaction shall be adjusted to the number obtained by dividing (x) the product of (i) the number of shares of Common Stock issuable upon the exercise of a warrant before such adjustment and (ii) the exercise price in effect immediately prior to the record date or effective date, as the case may be, for such dividend, distribution, split, subdivision, combination, recapitalization, restructuring, reclassification or similar transaction giving rise to this adjustment by (y) the new number of shares of Common Stock issuable upon exercise of the applicable warrants determined pursuant to the immediately preceding sentence.
The Warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise form on the reverse side of the warrant certificate
completed and executed as indicated, accompanied by full payment of the exercise price (or on a cashless basis, if applicable), by certified or official bank check payable to us, for the number of warrants being exercised. The warrant holders do not have the rights or privileges of holders of Common Stock and any voting rights until they exercise their warrants and receive shares of Common Stock. After the issuance of shares of Common Stock upon exercise of the warrants, each holder will be entitled to one vote for each share held of record on all matters to be voted on by shareholders.
Certain Anti-Takeover Provisions
Oklahoma General Corporation Act
Some provisions of Oklahoma law, the Expand Energy Charter and the Expand Energy Bylaws summarized below could make certain change of control transactions more difficult, including acquisitions of the Company by means of a tender offer, proxy contest or otherwise, as well as removal of the incumbent directors. These provisions may have the effect of preventing changes in management. It is possible that these provisions would make it more difficult to accomplish or deter transactions that a shareholder might consider in his or her best interest, including those attempts that might result in a premium over the market price for the Common Stock.
Number and Election of Directors
The Expand Energy Bylaws provide that the Board shall be comprised of no less than three and no more than 11 directors, with the number of directors to be fixed from time to time by resolution adopted by the Board.
Calling of Special Meetings of Shareholders
The Expand Energy Bylaws provide that special meetings of shareholders may be called only by (i) the chairman of the Board, (ii) the chief executive officer or the president of the Company, (iii) the Board acting pursuant to a resolution adopted by a majority of the directors of the Board then in office or (iv) the secretary of the Company upon the delivery of a written request to the Company by the holders of at least 35% of the voting power of the Company’s then outstanding capital stock in the manner provided in the Expand Energy Bylaws.
Amendments to the Expand Energy Charter and Expand Energy Bylaws
The Expand Energy Charter may be adopted, repealed, altered, amended or rescinded by the affirmative vote of the holders of at least a majority of the shares of the Company’s then outstanding capital stock entitled to vote thereon, except that the affirmative vote of the holders of at least sixty percent (60%) of the voting power of the Company’s then outstanding capital stock entitled to vote is required to amend, repeal, or adopt any provision inconsistent with Articles V, VI, VII, VIII, IX, X or XI of the Expand Energy Charter.
The Expand Energy Bylaws may be adopted, repealed, altered, amended or rescinded by either the Board or the affirmative vote of the holders of at least a majority of the shares of the Company’s then outstanding capital stock entitled to vote thereon (a “Shareholder Adopted Bylaw”), except that Section 5.8, Section 5.9 and Article VII of the Expand Energy Bylaws may not be amended by the Board or by a Shareholder Adopted Bylaw without the approval of sixty percent (60%) of the voting power of the then outstanding shares of the Company’s capital stock entitled to vote at an election of directors. In addition, any Shareholder Adopted Bylaw that is approved by sixty percent (60%) or more of the voting power of the Company’s then outstanding capital stock entitled to vote at an election of directors (a “Supermajority Bylaw”) may only be amended, altered or repealed by the affirmative vote of holders of at least sixty percent (60%) of the voting power of the Company’s then outstanding capital stock entitled to vote at an election of directors, and the Board may not adopt any new bylaw, or amend, alter or repeal any existing bylaw, if such adoption, amendment, alteration or repeal would be directly contrary to a Supermajority Bylaw.
Other Limitations on Shareholder Actions
Advance notice is required for shareholders to nominate directors or to submit proposals for consideration at meetings of shareholders. These procedures provide that notice of shareholder proposals
must be timely given in writing to the corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at the principal executive offices not less than 90 days nor more than 120 days prior to the anniversary of the immediately preceding annual meeting of shareholders. The Expand Energy Bylaws specify in detail the requirements as to form and content of all shareholder notices. These requirements may preclude shareholders from bringing matters before the shareholders at an annual or special meeting. The Expand Energy Bylaws also describe certain criteria for when shareholder-requested meetings need not be held.
Directors may be removed from office at any time by the affirmative vote of holders of at least a majority of the outstanding shares of common stock entitled generally to vote in the election of directors.
Newly Created Directorships and Vacancies on the Board
Under the Expand Energy Bylaws, any newly created directorships resulting from any increase in the number of directors and any vacancies on the Board for any reason may be filled by a majority vote of the directors then in office, even if less than a quorum, and the directors so chosen shall hold office until the next annual meeting of shareholders and until his or her successor is duly elected and qualified, or until his or her earlier resignation or removal.
Authorized but Unissued Shares
The Company’s authorized but unissued shares of common stock are available for future issuance. The Company may use these additional shares of common stock for a variety of corporate purposes, including future public offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain control of the Company by means of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum
The Expand Energy Charter provides that, unless the Company consents in writing to the selection of an alternative forum, the state courts within the State of Oklahoma (or, if no such state court has jurisdiction, the United States District Court for the Western District of Oklahoma) will be the sole and exclusive forum for (i) any derivative action or proceeding brought on the Company’s behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former directors, officers, other employees or shareholders to the Company or to the shareholders, (iii) any action asserting a claim arising pursuant to any provision of the Oklahoma General Corporation Act, the Expand Energy Charter or the Expand Energy Bylaws (as each may be amended from time to time), or (iv) any action asserting a claim related to or involving the Company that is governed by the internal affairs doctrine.
Additionally, Article VIII of the Expand Energy Charters provides that unless we consent in writing to the selection of an alternative forum, the federal courts shall be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act against us or any of our directors, officers, other employees or agents. Section 22 of the Securities Act, however, created concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. However, we note that there is uncertainty as to whether a court would enforce such provisions, and that investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder. The foregoing descriptions of the Expand Energy Charter and Expand Energy Bylaws do not purport to be complete and are qualified in their entirety by reference to the Expand Energy Charter and Expand Energy Bylaws, copies of which are attached hereto as Exhibits 3.1 and 3.2 and incorporated herein by reference.
Transfer Agent and Warrant Agent
Equiniti Trust Company is the transfer agent and registrar for our Common Stock and warrant agent for our Warrants. We have agreed to indemnify Equiniti Trust Company in its roles as transfer agent and warrant agent, its agents and each of its shareholders, directors, officers and employees against all liabilities, including judgments, costs and reasonable counsel fees that may arise out of acts performed or omitted for
its activities in that capacity, except for any liability due to any gross negligence, willful misconduct or bad faith of the indemnified person or entity.
Listing of Securities
Our Common Stock, Class A Warrants, Class B Warrants and Class C Warrants are listed on Nasdaq under the symbols “EXE,” “EXEEW,” “EXEEZ” and “EXEEL,” respectively.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the prospectus supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and Regions Bank, as trustee. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, “Expand Energy,” “we,” “our” or “us” refer to Expand Energy Corporation excluding our subsidiaries, unless expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. (Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made;
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if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange;
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. (Section 2.2)
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt
securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company (the “Depositary”), or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7)
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities. (Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
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we are the surviving entity or the successor person (if other than Expand Energy) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
“Event of Default” means with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or Expand Energy and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of Expand Energy;
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. (Section 6.1)
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof. (Section 6.1)
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. (Section 7.1(e)) Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series. (Section 6.12)
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7)
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment. (Section 6.8)
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each Securityholder of the securities of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency;
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
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to provide for uncertificated securities in addition to or in place of certificated securities;
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to add guarantees with respect to debt securities of any series or secure debt securities of any series;
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to surrender any of our rights or powers under the indenture;
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to add covenants or events of default for the benefit of the holders of debt securities of any series;
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to comply with the applicable procedures of the applicable depositary;
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to make any change that does not adversely affect the rights of any holder of debt securities;
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee;
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act; or
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to conform the text of the indenture or any debt securities to any provision of the “Description of Debt Securities” or “Description of the Notes” (or comparable) section in any offering memorandum, prospectus or prospectus supplement of the Company prepared from time to time with respect to the offer and sale of debt securities of any series, to the extent that such provision was intended to be a complete description or summary of a provision of the indenture or the debt securities, as determined in good faith by the Company (which intent will be established by an officer’s certificate). (Section 9.1)
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to any debt security. (Section 9.3)
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4)
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors, officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New York.
The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action
or proceeding. The indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section 10.10)
DESCRIPTION OF OTHER SECURITIES
We will set forth in the applicable prospectus supplement a description of any depositary shares, warrants, purchase contracts or units issued by us that may be offered and sold pursuant to this prospectus.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary (“DTC”), and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law;
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a “banking organization” within the meaning of the New York Banking Law;
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a member of the Federal Reserve System;
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
•
a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise provided in the description of the applicable securities herein or in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
•
DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be;
•
we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
•
an Event of Default has occurred and is continuing with respect to such series of securities,
we will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A., which we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,” either directly if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’ securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s books.
Clearstream and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments, deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
Other
The information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective operations.
PLAN OF DISTRIBUTION
We may sell the offered securities from time to time:
•
through underwriters or dealers;
•
through agents;
•
directly to one or more purchasers; or
•
through a combination of any of these methods of sale.
We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in the applicable prospectus supplement.
LEGAL MATTERS
Latham & Watkins LLP, Houston, Texas, will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of Expand Energy Corporation. The validity of issuance of the offered securities and other matters arising under Oklahoma law are being passed upon for us by Derrick & Briggs, LLP, Oklahoma City, Oklahoma. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) of Expand Energy Corporation (formerly known as Chesapeake Energy Corporation) (Successor) incorporated in this prospectus by reference to Chesapeake Energy Corporation’s Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to Chesapeake Energy Corporation’s emergence from bankruptcy on February 9, 2021 as discussed in Note 2 to the financial statements) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The financial statements of Expand Energy Corporation (formerly known as Chesapeake Energy Corporation) (Predecessor) incorporated in this prospectus by reference to Chesapeake Energy Corporation’s Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to Chesapeake Energy Corporation’s emergence from bankruptcy on February 9, 2021 as discussed in Note 2 to the financial statements) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
Certain estimates of Expand Energy Corporation’s net natural gas and oil reserves and related information incorporated by reference in this prospectus were based upon reserve estimates made by the Company’s reservoir engineers under the supervision of Chesapeake Energy Corporation’s management. These reserve estimates were audited by Netherland, Sewell & Associates, Inc., an independent petroleum engineering firm.
The audited historical financial statements of Southwestern Energy Company and management’s assessment of the effectiveness of internal control over financial reporting incorporated by reference in the Company’s Current Report on Form 8-K, filed with the SEC on November 15, 2024 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
Certain estimates of Southwestern Energy Company’s net natural gas and oil reserves and related information incorporated by reference in this prospectus were based upon reserve estimates made by Southwestern Energy Company’s reservoir engineers under the supervision of Southwestern Energy Company’s management. These reserve estimates were audited by Netherland, Sewell & Associates, Inc., an independent petroleum engineering firm.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.
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SEC registration fee
|
|
|
|
$ |
(1)
|
|
|
| |
Printing expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Legal fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Accounting fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Blue Sky, qualification fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Transfer agent fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Trustee fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Depositary fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Warrant agent fees and expenses
|
|
|
|
$ |
(2)
|
|
|
| |
Miscellaneous
|
|
|
|
$ |
(2)
|
|
|
| |
Total
|
|
|
|
$ |
(1)(2)
|
|
|
(1)
Pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the SEC registration fee will be paid at the time of any particular offering of securities under the registration statement, and is therefore not currently determinable.
(2)
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
Oklahoma General Corporation Law
Section 1031 of the OGCA, under which the Company is incorporated, permits the Company to indemnify its directors and officers. Article VII of Expand Energy Charter and Article VI of the Expand Energy Bylaws provide for indemnification of directors and officers under certain circumstances. As permitted by the OGCA and the Expand Energy Charter and Expand Energy Bylaws, the Company also maintains insurance on behalf of its directors and officers against liability arising out of their status as such.
Certificate of Incorporation and Bylaws of the Company
The Company’s Certificate of Incorporation and Bylaws provide for mandatory indemnification of each of the Company’s officers and directors against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought by reason of such person being or having been a director, officer, employee or agent of the Company, or of any other corporation, partnership, joint venture, trust or other enterprise at the request of the Company, other than an action by or in the right of the Company. To be entitled to such indemnification, the individual must have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, the person seeking indemnification had no reasonable cause to believe that the conduct was unlawful. The Company’s Certificate of Incorporation and Bylaws also provide for indemnification of each of the Company’s officers and directors against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defense or settlement of any action or suit by or in the right of the Company brought by reason of the person seeking indemnification being or having been a director, officer, employee or agent of the Company, or any other corporation, partnership, joint venture, trust or other enterprise at the request of the Company. To be entitled to such indemnification, the individual must have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification shall be made in respect of any claim, issue or matter as to which the individual shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which such action or suit was decided has determined, despite the adjudication of liability, that the person is fairly and reasonably entitled to indemnity for such expenses which the court deems proper. The right to indemnification also includes the right to be paid by the Company the expenses incurred in connection with any such proceeding in advance of its final disposition.
D&O Insurance and Indemnification Agreements
The Company has entered into indemnity agreements with each of its directors and executive officers. Under each indemnity agreement, the Company will pay on behalf of the indemnitee, subject to certain exceptions, any amount which he is or becomes legally obligated to pay because of (a) any claim or claims from time to time threatened or made against him by any person because of any act or omission or neglect or breach of duty, including any actual or alleged error or misstatement or misleading statement, which he commits or suffers while acting in his capacity as a director and/or officer of the Company or an affiliate or (b) being a party, or being threatened to be made a party, to any threatened, pending or contemplated action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was an officer, director, employee or agent of the Company or an affiliate or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The payments which the Company would be obligated to make under an indemnification agreement could include damages, charges, judgments, fines, penalties, settlements and costs, cost of investigation and cost of defense of legal, equitable or criminal actions, claims or proceedings and appeals therefrom, and costs of attachment, supersedeas, bail, surety or other bonds.
Indemnification and Insurance under the Merger Agreement with Southwestern
The Company as the surviving corporation in the Merger has agreed to, from the Effective Time (as defined in the Merger Agreement) until the six year anniversary of the Effective Time, jointly and severally, indemnify, defend and hold harmless in the same manner as provided by Southwestern immediately prior to the date of the Merger Agreement, certain directors and officers of Southwestern and its subsidiaries or those who acts as fiduciary under any employee benefit plan of Southwestern (collectively, the “indemnified persons”) against costs and liabilities (including attorneys’ and other professionals’ fees and expenses), arising, in whole or in part, out of the fact that such person is or was a director or officer of Southwestern or any of its subsidiaries, a fiduciary under any Southwestern plan or any employee benefit plan of Southwestern or any of its subsidiaries or is or was serving at the request of Southwestern or any of its subsidiaries as a director, officer, or fiduciary of another entity or by reason of anything done or not done by such person in any such capacity, whether pertaining to any act or omission occurring or existing prior to or at, but not after, the Effective Time (such liabilities, the “indemnified liabilities”), including all indemnified liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Merger Agreement or the transactions contemplated by the Merger Agreement, in each case to the fullest extent under applicable law.
The Company has agreed not to, until the six year anniversary date of the Effective Time, amend, repeal or otherwise modify any provision in the organizational documents of the Surviving Corporation (as defined in the Merger Agreement) or its subsidiaries in any manner that would affect adversely the rights thereunder except to the extent required by applicable law. The Company has agreed to fulfill and honor any indemnification, expense advancement or exculpation agreements between Southwestern or any of its subsidiaries and any of their respective directors or officers existing and in effect prior to January 10, 2024.
The Company has put in place customary “tail” insurance policies with a claims period of at least six years and in an amount and scope at least as favorable as Southwestern’s then existing policies with respect to matters, acts or omissions existing or occurring at or prior to, or after, the Effective Time.
Underwriting Agreements
Any underwriting agreement or distribution agreement that the registrant enters into with any underwriters or agents involved in the offering or sale of any securities registered hereby may require such
underwriters or dealers to indemnify the registrant, some or all of its directors and officers and its controlling persons, if any, for specified liabilities, which may include liabilities under the Securities Act of 1933, as amended.
Item 16. Exhibits
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Exhibit
Number
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Description
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1.1*
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Form of Underwriting Agreement.
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3.1*
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Third Amended and Restated Certificate of Incorporation of Expand Energy Corporation (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
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3.2*
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Third Amended and Restated Bylaws of Expand Energy Corporation (incorporated by reference to Exhibit 3.2 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
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4.1*
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Indenture, dated as of January 23, 2015 between Southwestern Energy Company and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Southwestern Energy Company on January 23, 2015).
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4.2*
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First Supplemental Indenture, dated as of January 23, 2015 between Southwestern Energy Company and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on January 23, 2015).
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4.3*
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Second Supplemental Indenture, dated as of September 25, 2017 between Southwestern Energy Company and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.5 of the Current Report on Form 8-K filed by Southwestern Energy Company on September 25, 2017).
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4.4*
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Third Supplemental Indenture, dated as of November 29, 2017 between Southwestern Energy Company and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on December 1, 2017).
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4.5*
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Fourth Supplemental Indenture, dated as of April 26, 2018 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on April 26, 2018).
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4.6*
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Fifth Supplemental Indenture, dated as of December 3, 2018 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.15 of the Annual Report on Form 10-K filed by Southwestern Energy Company (Commission File No. 001-08246) for the year ended December 31, 2020).
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4.7*
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Sixth Supplemental Indenture, dated as of December 10, 2020 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.16 of the Annual Report on Form 10-K filed by Southwestern Energy Company (Commission File No. 001-08246) for the year ended December 31, 2020).
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4.8*
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Seventh Supplemental Indenture, dated as of September 10, 2021 between Southwestern Energy Company, the guarantors named therein and Regions Bank, as trustee (incorporated by reference to Exhibit 4.14 of the Amendment No. 1 to Form S-4 filed by Southwestern Energy Company on October 12, 2021).
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4.9*
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Eighth Supplemental Indenture, dated as of January 4, 2022 between Southwestern Energy Company, the guarantors named therein and Regions Bank, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on January 5, 2022).
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Exhibit
Number
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|
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Description
|
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4.10*
|
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Supplemental Indenture No. 9, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.10 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
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4.11*
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Supplemental Indenture No. 10, dated as of October 28, 2024 by and among Expand Energy Corporation and Regions Bank, as trustee (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K, filed with the SEC on November 1, 2024).
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4.12*
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Indenture, dated as of September 25, 2017 between Southwestern Energy Company and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Southwestern Energy Company on September 25, 2017).
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4.13*
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First Supplemental Indenture, dated as of September 25, 2017 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on September 25, 2017).
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4.14*
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Second Supplemental Indenture, dated as of April 26, 2018 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.3 of the Current Report on Form 8-K filed by Southwestern Energy Company on April 26, 2018).
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4.15*
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Third Supplemental Indenture, dated as of December 3, 2018 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.21 of Annual Report on Form 10-K filed by Southwestern Energy Company (Commission File No. 001-08246) for the year ended December 31, 2020).
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4.16*
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Fourth Supplemental Indenture, dated as of August 27, 2020 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on August 27, 2020).
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4.17*
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Fifth Supplemental Indenture, dated as of December 10, 2020 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.23 of the Annual Report on Form 10-K filed by Southwestern Energy Company (Commission File No. 001-08246) for the year ended December 31, 2020).
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4.18*
|
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Sixth Supplemental Indenture, dated as of August 30, 2021, among Southwestern Energy Company, the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.4 of the Current Report on Form 8-K filed by Southwestern Energy Company on August 30, 2021).
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4.19*
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Seventh Supplemental Indenture, dated as of September 10, 2021 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.23 to the Amendment No. 1 to Form S-4 filed by Southwestern Energy Company on October 12, 2021).
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4.20*
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Eighth Supplemental Indenture, dated as of January 4, 2022 between Southwestern Energy Company, the guarantors named therein and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.3 of the Current Report on Form 8-K filed by Southwestern Energy Company on January 5, 2022).
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4.21*
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Supplemental Indenture No. 9, dated as of October 1, 2024, by and among Expand Energy Corporation, the guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee (incorporated by reference to Exhibit 4.20 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
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Exhibit
Number
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Description
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4.22*
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Supplemental Indenture No. 10, dated as of October 28, 2024, by and among Expand Energy Corporation and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K, filed with the SEC on November 1, 2024).
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4.23*
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Indenture, dated as of August 30, 2021, between Southwestern Energy Company and Regions Bank, as trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Southwestern Energy Company on August 30, 2021).
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4.24*
|
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First Supplemental Indenture, dated as of August 30, 2021, among Southwestern Energy Company, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on August 30, 2021).
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4.25*
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Second Supplemental Indenture, dated as of September 3, 2021, among Southwestern Energy Company, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Southwestern Energy Company on September 3, 2021).
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4.26*
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|
|
Third Supplemental Indenture, dated as of September 10, 2021 among Southwestern Energy Company, the guarantors named therein and Regions Bank, as trustee (incorporated by reference to Exhibit 4.31 of Post-Effective Amendment No. 1 on Form S-4 filed by Southwestern Energy Company on October 12, 2021).
|
|
| |
4.27*
|
|
|
Fourth Supplemental Indenture, dated as of December 22, 2021, among Southwestern Energy Company, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed by Southwestern Energy Company on December 22, 2021).
|
|
| |
4.28*
|
|
|
Fifth Supplemental Indenture, dated as of January 4, 2022 between Southwestern Energy Company, the guarantors named therein and Regions Bank, as trustee (incorporated by reference to Exhibit 4.4 of the Current Report on Form 8-K filed by Southwestern Energy Company on January 5, 2022).
|
|
| |
4.29*
|
|
|
Supplemental Indenture No. 6, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.27 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
|
|
| |
4.30*
|
|
|
Supplemental Indenture No. 7, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.28 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
|
|
| |
4.31*
|
|
|
Supplemental Indenture No. 8, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Regions Bank, as trustee (incorporated by reference to Exhibit 4.29 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
|
|
| |
4.32*
|
|
|
Supplemental Indenture No. 9, dated as of October 28, 2024 by and among Expand Energy Corporation and Regions Bank, as trustee (incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K, filed with the SEC on November 1, 2024).
|
|
| |
4.33*
|
|
|
Indenture dated as of February 5, 2021, among Chesapeake Escrow Issuer LLC, as issuer, the guarantors signatory thereto, and Deutsche Bank Trust Company Americas, as trustee, with respect to 5.5% Senior Notes due 2026 and 5.875% Senior Notes due 2029 (incorporated by reference to Exhibit 10.11 of the Company’s Annual Report on Form 10-K filed with the SEC (Commission File No. 001-13726) for the year ended December 31, 2020).
|
|
| |
Exhibit
Number
|
|
|
Description
|
|
| |
4.34*
|
|
|
First Supplemental Indenture, dated as of February 9, 2021, by and among Chesapeake Energy Corporation, the Guarantors signatory thereto, and Deutsche Bank Trust Company Americas, as trustee, with respect to 5.5% Senior Notes due 2026 and 5.875% Senior Notes due 2029 (incorporated by reference to Exhibit 10.13 of the Company’s Annual Report on Form 10-K filed with the SEC (Commission File No. 001-13726) for the year ended December 31, 2020).
|
|
| |
4.35*
|
|
|
Second Supplemental Indenture, dated as of November 2, 2021, by and among Chesapeake Energy Corporation, the Guarantors signatory thereto, and Deutsche Bank Trust Company Americas, as trustee, with respect to 5.5% Senior Notes due 2026 and 5.875% Senior Notes due 2029 (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on November 2, 2021).
|
|
| |
4.36*
|
|
|
Supplemental Indenture No. 3, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.33 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
|
|
| |
4.37*
|
|
|
Supplemental Indenture No. 4, dated as of October 28, 2024 by and among Expand Energy Corporation and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.4 of the Company’s Current Report on Form 8-K, filed with the SEC on November 1, 2024).
|
|
| |
4.38*
|
|
|
Indenture, dated April 7, 2021, by and among Vine Energy Holdings LLC, the guarantors party thereto and Wilmington Trust, National Association, a national banking association, as trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Vine Energy Holdings LLC on April 9, 2021).
|
|
| |
4.39*
|
|
|
Second Supplemental Indenture, dated as of November 2, 2021, by and among Chesapeake Energy Corporation, the guarantors party thereto and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K, filed with the SEC on November 2, 2021).
|
|
| |
4.40*
|
|
|
Supplemental Indenture No. 5, dated as of October 1, 2024 by and among Expand Energy Corporation, the guarantors party thereto and Wilmington Trust, National Association, a national banking association, as trustee (incorporated by reference to Exhibit 4.36 of the Company’s Current Report on Form 8-K, filed with the SEC on October 1, 2024).
|
|
| |
4.41*
|
|
|
Supplemental Indenture No. 6, dated as of October 28, 2024 by and among Expand Energy Corporation and Wilmington Trust, National Association, a national banking association, as trustee (incorporated by reference to Exhibit 4.5 of the Company’s Current Report on Form 8-K, filed with the SEC on November 1, 2024).
|
|
| |
4.42*
|
|
|
Class A Warrant Agreement, dated as of February 9, 2021, between Chesapeake Energy Corporation and Equiniti Trust Company (incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K, filed with the SEC on February 9, 2021).
|
|
| |
4.43*
|
|
|
Class B Warrant Agreement, dated as of February 9, 2021, between Chesapeake Energy Corporation and Equiniti Trust Company (incorporated by reference to Exhibit 10.4 of the Company’s Current Report on Form 8-K, filed with the SEC on February 9, 2021).
|
|
| |
4.44*
|
|
|
Class C Warrant Agreement, dated as of February 9, 2021, between Chesapeake Energy Corporation and Equiniti Trust Company (incorporated by reference to Exhibit 10.5 of the Company’s Current Report on Form 8-K, filed with the SEC on February 9, 2021).
|
|
| |
4.45*
|
|
|
Credit Agreement, dated as of December 9, 2022 by and among Expand Energy Corporation (f/k/a Chesapeake Energy Corporation), the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, filed with the SEC on December 12, 2022).
|
|
| |
4.46*
|
|
|
Form of Specimen Certificate Representing Preferred Stock.
|
|
| |
4.47
|
|
|
Form of Indenture.
|
|
| |
Exhibit
Number
|
|
|
Description
|
|
| |
4.48*
|
|
|
Form of Debt Security.
|
|
| |
4.49*
|
|
|
Form of Deposit Agreement.
|
|
| |
4.50*
|
|
|
Form of Warrant.
|
|
| |
4.51*
|
|
|
Form of Warrant Agreement.
|
|
| |
4.52*
|
|
|
Form of Purchase Contract Agreement.
|
|
| |
4.53*
|
|
|
Form of Unit Agreement.
|
|
| |
5.1
|
|
|
|
|
| |
5.2
|
|
|
|
|
| |
23.1
|
|
|
|
|
| |
23.2
|
|
|
|
|
| |
23.3
|
|
|
|
|
| |
23.4
|
|
|
|
|
| |
23.5
|
|
|
|
|
| |
23.6
|
|
|
|
|
| |
23.7
|
|
|
|
|
| |
24.1
|
|
|
|
|
| |
25.1
|
|
|
|
|
| |
107.1
|
|
|
|
|
*
To be filed by amendment or incorporated by reference in connection with the offering of the securities.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Oklahoma City, State of Oklahoma on November 20, 2024.
EXPAND ENERGY CORPORATION
By:
/s/ Domenic Dell’Osso, Jr.
Domenic Dell’Osso, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Domenic Dell’Osso and Chris Lacy, and each of them singly (with full power to each of them to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him or her and in his or her name, place and stead, and in any and all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration statement and any other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Domenic J. Dell’Osso, Jr.
Domenic J. Dell’Osso, Jr.
|
|
|
President and Chief Executive Officer
(Principal Executive Officer)
|
|
|
November 20, 2024
|
|
| |
/s/ Mohit Singh
Mohit Singh
|
|
|
Executive Vice President and
Chief Financial Office
(Principal Financial Officer)
|
|
|
November 20, 2024
|
|
| |
/s/ Gregory Larson
Gregory Larson
|
|
|
Vice President — Accounting & Controller
(Principal Accounting Officer)
|
|
|
November 20, 2024
|
|
| |
/s/ Michael A. Wichterich
Michael A. Wichterich
|
|
|
Chairman of the Board
|
|
|
November 20, 2024
|
|
| |
/s/ Timothy S. Duncan
Timothy S. Duncan
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ Benjamin C. Duster, IV
Benjamin C. Duster, IV
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Sarah A. Emerson
Sarah A. Emerson
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ Matthew M. Gallagher
Matthew M. Gallagher
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ John D. Gass
John D. Gass
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ S.P. “Chip” Johnson, IV
S.P. “Chip” Johnson, IV
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ Catherine A. Kehr
Catherine A. Kehr
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ Shameek Konar
Shameek Konar
|
|
|
Director
|
|
|
November 20, 2024
|
|
| |
/s/ Brian Steck
Brian Steck
|
|
|
Director
|
|
|
November 20, 2024
|
|
Exhibit 4.47
Expand Energy Corporation
INDENTURE
Dated as of ______________, 20___
Regions Bank
Trustee
TABLE
OF CONTENTS
Page
| ARTICLE I. DEFINITIONS AND INCORPORATION
BY REFERENCE |
1 |
| Section 1.1. |
Definitions |
1 |
| Section 1.2. |
Other Definitions |
4 |
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
4 |
| Section 1.4. |
Rules of Construction |
5 |
| |
|
|
| ARTICLE II. THE SECURITIES |
5 |
| Section 2.1. |
Issuable in Series |
5 |
| Section 2.2. |
Establishment of Terms of Series of Securities |
6 |
| Section 2.3. |
Execution and Authentication |
8 |
| Section 2.4. |
Registrar, Paying Agent and Notice Agent |
9 |
| Section 2.5. |
Paying Agent to Hold Money in Trust |
10 |
| Section 2.6. |
Holder Lists |
10 |
| Section 2.7. |
Transfer and Exchange |
10 |
| Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities |
11 |
| Section 2.9. |
Outstanding Securities |
12 |
| Section 2.10. |
Treasury Securities |
12 |
| Section 2.11. |
Temporary Securities |
12 |
| Section 2.12. |
Cancellation |
13 |
| Section 2.13. |
Defaulted Interest |
13 |
| Section 2.14. |
Global Securities |
13 |
| Section 2.15. |
CUSIP Numbers |
15 |
| |
|
|
| ARTICLE III. REDEMPTION |
15 |
| Section 3.1. |
Notice to Trustee |
15 |
| Section 3.2. |
Selection of Securities to be Redeemed |
16 |
| Section 3.3. |
Notice of Redemption |
16 |
| Section 3.4. |
Effect of Notice of Redemption |
17 |
| Section 3.5. |
Deposit of Redemption Price |
17 |
| Section 3.6. |
Securities Redeemed in Part |
17 |
| |
|
|
| ARTICLE IV. COVENANTS |
18 |
| Section 4.1. |
Payment of Principal and Interest |
18 |
| Section 4.2. |
SEC Reports |
18 |
| Section 4.3. |
Compliance Certificate |
18 |
| Section 4.4. |
Stay, Extension and Usury Laws |
19 |
| |
|
|
| ARTICLE V. SUCCESSORS |
19 |
| Section 5.1. |
When Company May Merge, Etc. |
19 |
| Section 5.2. |
Successor Corporation Substituted |
19 |
| ARTICLE VI. DEFAULTS AND REMEDIES |
20 |
| Section 6.1. |
Events of Default |
20 |
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
21 |
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
22 |
| Section 6.4. |
Trustee May File Proofs of Claim |
22 |
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
23 |
| Section 6.6. |
Application of Money Collected |
23 |
| Section 6.7. |
Limitation on Suits |
24 |
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
24 |
| Section 6.9. |
Restoration of Rights and Remedies |
24 |
| Section 6.10. |
Rights and Remedies Cumulative |
25 |
| Section 6.11. |
Delay or Omission Not Waiver |
25 |
| Section 6.12. |
Control by Holders |
25 |
| Section 6.13. |
Waiver of Past Defaults |
26 |
| Section 6.14. |
Undertaking for Costs |
26 |
| |
|
|
| ARTICLE VII. TRUSTEE |
26 |
| Section 7.1. |
Duties of Trustee |
26 |
| Section 7.2. |
Rights of Trustee |
28 |
| Section 7.3. |
Individual Rights of Trustee |
29 |
| Section 7.4. |
Trustee’s Disclaimer |
29 |
| Section 7.5. |
Notice of Defaults |
29 |
| Section 7.6. |
Reports by Trustee to Holders |
29 |
| Section 7.7. |
Compensation and Indemnity |
30 |
| Section 7.8. |
Replacement of Trustee |
30 |
| Section 7.9. |
Successor Trustee by Merger, Etc. |
31 |
| Section 7.10. |
Eligibility; Disqualification |
32 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
32 |
| |
|
|
| ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
32 |
| Section 8.1. |
Satisfaction and Discharge of Indenture |
32 |
| Section 8.2. |
Application of Trust Funds; Indemnification |
33 |
| Section 8.3. |
Legal Defeasance of Securities of any Series |
34 |
| Section 8.4. |
Covenant Defeasance |
35 |
| Section 8.5. |
Repayment to Company |
37 |
| Section 8.6. |
Reinstatement |
37 |
| |
|
|
| ARTICLE IX. AMENDMENTS AND WAIVERS |
37 |
| Section 9.1. |
Without Consent of Holders |
37 |
| Section 9.2. |
With Consent of Holders |
38 |
| Section 9.3. |
Limitations |
38 |
| Section 9.4. |
Compliance with Trust Indenture Act |
39 |
| Section 9.5. |
Revocation and Effect of Consents |
39 |
| Section 9.6. |
Notation on or Exchange of Securities |
40 |
| Section 9.7. |
Trustee Protected |
40 |
| ARTICLE X. MISCELLANEOUS |
40 |
| Section 10.1. |
Trust Indenture Act Controls |
40 |
| Section 10.2. |
Notices |
40 |
| Section 10.3. |
Communication by Holders with Other Holders |
42 |
| Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
42 |
| Section 10.5. |
Statements Required in Certificate or Opinion |
42 |
| Section 10.6. |
Rules by Trustee and Agents |
43 |
| Section 10.7. |
Legal Holidays |
43 |
| Section 10.8. |
No Recourse Against Others |
43 |
| Section 10.9. |
Counterparts |
43 |
| Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
43 |
| Section 10.11. |
No Adverse Interpretation of Other Agreements |
44 |
| Section 10.12. |
Successors |
44 |
| Section 10.13. |
Severability |
44 |
| Section 10.14. |
Table of Contents, Headings, Etc. |
44 |
| Section 10.15. |
Securities in a Foreign Currency |
45 |
| Section 10.16. |
Judgment Currency |
45 |
| Section 10.17. |
Force Majeure |
46 |
| Section 10.18. |
U.S.A. Patriot Act |
46 |
| |
|
|
| ARTICLE XI. SINKING FUNDS |
46 |
| Section 11.1. |
Applicability of Article |
46 |
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
46 |
| Section 11.3. |
Redemption of Securities for Sinking Fund |
47 |
EXPAND
ENERGY CORPORATION
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of ____________, 20__
| § 310(a)(1) | |
7.10 |
| (a)(2) | |
7.10 |
| (a)(3) | |
Not Applicable |
| (a)(4) | |
Not Applicable |
| (a)(5) | |
7.10 |
| (b) | |
7.10 |
| § 311(a) | |
7.11 |
| (b) | |
7.11 |
| (c) | |
Not Applicable |
| § 312(a) | |
2.6 |
| (b) | |
10.3 |
| (c) | |
10.3 |
| § 313(a) | |
7.6 |
| (b)(1) | |
7.6 |
| (b)(2) | |
7.6 |
| (c)(1) | |
7.6 |
| (d) | |
7.6 |
| § 314(a) | |
4.2, 10.5 |
| (b) | |
Not Applicable |
| (c)(1) | |
10.4 |
| (c)(2) | |
10.4 |
| (c)(3) | |
Not Applicable |
| (d) | |
Not Applicable |
| (e) | |
10.5 |
| (f) | |
Not Applicable |
| § 315(a) | |
7.1 |
| (b) | |
7.5 |
| (c) | |
7.1 |
| (d) | |
7.1 |
| (e) | |
6.14 |
| § 316(a) | |
2.10 |
| (a)(1)(A) | |
6.12 |
| (a)(1)(B) | |
6.13 |
| (b) | |
6.8 |
| § 317(a)(1) | |
6.3 |
| (a)(2) | |
6.4 |
| (b) | |
2.5 |
| § 318(a) | |
10.1 |
Note: This reconciliation and tie shall not,
for any purpose, be deemed to be part of the Indenture.
Indenture
dated as of __________, 20__ between Expand Energy Corporation, a company incorporated under the laws of Oklahoma (“Company”),
and Regions Bank (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means
any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection with any payment, the place
of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default”
means any event which is, or after notice, passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary and any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who
is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the
Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
Section 1.2. Other
Definitions.
| TERM |
|
DEFINED
IN SECTION |
| |
|
|
| “Agent Member” |
|
2.14.6 |
| “Bankruptcy Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Event of Default” |
|
6.1 |
| “Judgment Currency” |
|
10.16 |
| “mandatory sinking fund payment” |
|
11.1 |
| “New York Banking Day” |
|
10.16 |
| “Notice Agent” |
|
2.4 |
| “optional sinking fund payment” |
|
11.1 |
| “Paying Agent” |
|
2.4 |
| “Registrar” |
|
2.4 |
| “Required Currency” |
|
10.16 |
| “Specified Courts” |
|
10.10 |
| “successor person” |
|
5.1 |
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution,
a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under
a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate
or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture
hereto or Officer’s Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants applicable to Securities of the Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution
and Authentication.
An Officer shall sign the Securities
for the Company by manual, facsimile or electronic signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
The Trustee shall have the right
to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that
such action may not be taken lawfully; or (b) if the Trustee in good faith determines that such action may expose the Trustee to
personal liability.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar,
Paying Agent and Notice Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(“Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying
Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the
name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.5. Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit
of Holders of any Series of Securities or the Trustee, all money held by the Paying Agent for the payment of principal of or interest
on the Series of Securities and will notify the Trustee in writing of any default by the Company in making any such payment. While
any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities
all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless
and have no liability with respect to payments or disbursements (including to the Holders) until they have confirmed receipt of funds
sufficient to make the relevant payment. No money held by an Agent needs to be segregated except as is required by law.
Section 2.6. Holder
Lists.
If it is serving as Registrar,
the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request
in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each
Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of sending any material pursuant to a request made under TIA § 312(b).
Section 2.7. Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9. Outstanding
Securities.
The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders
of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury
Securities.
In determining whether the Holders
of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice,
consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
Section 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirements of the Exchange
Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may
not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted
Interest.
If the Company defaults in a
payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee and
to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid.
The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global
Securities.
2.14.1. Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2. Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate
to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
None of the Trustee or any Agent
shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Security.
2.14.3. Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee shall
bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4. Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5. Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered
Holders shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.15. CUSIP
Numbers.
The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only
on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing
of the redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give the notice at
least 15 days before the redemption date (or such shorter period as may be acceptable to the Trustee).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
manner that the Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock
exchange requirements, subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities
to be redeemed shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the
principal of Securities of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the
Series and portions of them it selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect
to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for
each Series and the authorized integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called
for redemption also apply to portions of Securities of that Series called for redemption. Neither the Trustee nor the Paying
Agent shall be liable for any selection made by it in accordance with this paragraph (including the procedures of the Depositary).
Section 3.3. Notice
of Redemption.
Unless otherwise indicated for
a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but
not more than 60 days before a redemption date (except that redemption notices may be sent more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture with respect
to Securities), the Company shall send or cause to be sent by first-class mail or electronically, in accordance with the procedures of
the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption
date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults
in the deposit of the redemption price;
(g) the
“CUSIP” number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has
delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice and the form of
such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date
and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new
Global Security in denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered.
In the case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion
thereof.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if
any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m.,
New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal
of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2 that the Company files
with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to Holders at the time such
reports, information or documents are filed via the EDGAR system (or any successor system). The Trustee shall not be obligated to monitor
or confirm, on a continuing basis or otherwise, our compliance with the covenants.
Section 4.3. Compliance
Certificate.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best
of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is
not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officer’s Certificate it is provided that such Series shall not have the benefit of said
Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraph (a) or
(b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of
Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, mailed by first
class mail (registered or certified mail, return receipt requested), email, or overnight air courier guaranteeing next day delivery to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities
of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is
a “Notice of Default” hereunder;
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and the order or decree remains unstayed
and in effect for 60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee, subject to Article VII hereof, may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To
the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of
any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in
principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject
to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability, and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its
consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption
date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants
or obligations will be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities. The Trustee shall not be accountable for the Company’s use of
the proceeds from the Securities and shall not be responsible for any statement in the Securities other than its certificate of authentication.
Section 7.5. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall send to each Holder of the Securities of that Series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders of that Series. The Trustee will not be deemed to have notice or be
charged with knowledge of any Default or Event of Default unless written notice thereof has been received by a Responsible Officer, and
such notice references the applicable Series of Securities and this Indenture and states on its face that a Default or Event of Default
has occurred.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each anniversary
of the date of this Indenture, the Trustee shall transmit to all Holders, as their names and addresses appear on the register kept by
the Registrar, a brief report dated as of such date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its delivery to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed
on any national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the
next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through willful misconduct or negligence, as determined by a final decision of a
court of competent jurisdiction.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.
Section 7.8. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall
send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
Any organization or entity into
which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or
(3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S.
Government Obligations, which amount shall be sufficient in the opinion of a nationally recognized investment bank, appraisal firm or
firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants
agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) for the
purpose of paying and discharging each installment of principal (including mandatory sinking fund payments or analogous payments) of and
interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent
public accountants agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her
opinion) expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money
were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3
is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of
independent public accountants (or if no nationally recognized investment bank, appraisal firm or firm of independent public accountants
agrees to express such opinion, a certificate from the chief financial officer of Expand Energy expressing his or her opinion) expressed
in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, on and
any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of principal or
interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with
respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and,
unless otherwise specified therein, any additional covenants specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants (or if no nationally
recognized investment bank, appraisal firm or firm of independent public accountants agrees to express such opinion, a certificate from
the chief financial officer of Expand Energy expressing his or her opinion) expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments or analogous payments) of and
interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying
Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such Series and
under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Company has made any payment of principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Holder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee;
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; or
(l) to
conform the text of this Indenture or any Securities to any provision of the “Description of Debt Securities” or “Description
of the Notes” (or comparable) section in any offering memorandum, prospectus or prospectus supplement of the Company prepared from
time to time with respect to the offer and sale of Securities of any series, to the extent that such provision was intended to be a complete
description or summary of a provision of this Indenture or the Securities, as determined in good faith by the Company (which intent will
be established by an Officer’s Certificate).
Section 9.2. With
Consent of Holders.
Subject to Section 9.3,
the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders
of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this
section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each
Holder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth
in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to
his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or
the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
The Company may, but shall not
be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee may,
but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.3 new Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, an Officer’s Certificate and/or an Opinion of Counsel complying with
Sections 10.4 and 10.5 stating that such supplemental indenture is authorized or permitted by this Indenture and (subject to Section 7.1)
shall be fully protected in relying upon such Officer’s Certificate and/or Opinion of Counsel. The Trustee shall sign all supplemental
indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight air courier guaranteeing
next day delivery, to the others’ address:
if to the Company:
Expand Energy Corporation
6100 North Western Avenue
Oklahoma City, OK 73118
Attention: Chris Lacy
Email: legal@expandenergy.com
with a copy to:
Latham & Watkins
LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Attention: Kevin Richardson
Email: kevin.richardson@lw.com
if to the Trustee:
Regions Bank,
1717 McKinney Avenue 11th Floor
Dallas, Texas 75202
Attention: Shawn Bednasek
Office: (214) 220-6158
Fax: (713) 960-4058
Email: shawn.bednasek@regions.com
The Company or the Trustee by
notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of any
Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication
by Holders with Other Holders.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent , if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting
a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
Unless otherwise provided herein
or in any other Securities, the words “execute”, “execution”, “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Securities or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities)
each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table, headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities
in a Foreign Currency.
Unless otherwise specified in
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one
currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular
Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates”
section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection
with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes, pandemics, epidemics or other public health emergencies, or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood
that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2, except as otherwise permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of
Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect
of a particular Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2, and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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EXPAND ENERGY CORPORATION |
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By: |
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Name: |
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Title: |
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REGIONS BANK, as Trustee |
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By: |
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Name: |
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Title: |
[Signature Page to Indenture]
Exhibit 5.1
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811 Main Street, Suite 3700 |
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Houston, TX 77002 |
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Tel: +1.713.546.5400 Fax: +1.713.546.5401 |
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www.lw.com |
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|
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FIRM / AFFILIATE OFFICES |
| Austin |
Milan |
| Beijing |
Munich |
| Boston |
New York |
| Brussels |
Orange County |
| Century City |
Paris |
| |
Chicago |
Riyadh |
| |
Dubai |
San Diego |
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Düsseldorf |
San Francisco |
| November 20, 2024 |
Frankfurt |
Seoul |
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Hamburg |
Silicon Valley |
|
Hong Kong |
Singapore |
| Expand Energy Corporation |
Houston |
Tel Aviv |
| 6100 North Western Avenue |
London |
Tokyo |
| Oklahoma City, OK 73118 |
Los Angeles |
Washington, D.C. |
| |
Madrid |
|
| Re: |
Expand Energy Corporation – Registration Statement on Form S-3 |
To the addressee set forth above:
We have acted as special counsel to Expand Energy
Corporation, an Oklahoma corporation (the “Company”), in connection with its filing on the date hereof with
the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (as amended,
the “Registration Statement”), including a base prospectus (the “Base Prospectus”),
which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the
Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”),
relating to the registration for issue and sale by the Company of (i) shares of the Company’s common stock, $0.01 par value per
share (“Common Stock”), (ii) shares of one or more series of the Company’s preferred stock, $0.01 par
value per share (“Preferred Stock”), (iii) one or more series of the Company’s debt securities (collectively,
“Debt Securities”) to be issued under an indenture to be entered into between the Company, as issuer, and Regions
Bank, as trustee (a form of which is included as Exhibit 4.47 to the Registration Statement) and one or more board resolutions, supplements
thereto or officer’s certificates thereunder (such indenture, together with the applicable board resolution, supplement or officer’s
certificate pertaining to the applicable series of Debt Securities, the “Applicable Indenture”), (iv) depositary
shares (“Depositary Shares”), (v) warrants (“Warrants”), (vi) purchase contracts (“Purchase
Contracts”) and (vii) units (“Units”). The Common Stock, Preferred Stock, Debt Securities, Depositary
Shares, Warrants, Purchase Contracts and Units are referred to herein collectively as the “Securities.”
This opinion is being furnished in connection with
the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to
the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to the
issue of the Securities.
November 20, 2024
Page 2
As such counsel, we have examined such
matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have
relied upon certificates and other assurances of officers of the Company and others as to factual matters without having
independently verified such factual matters. We are opining herein as to the internal laws of the State of New York, and we express
no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to any
matters of municipal law or the laws of any local agencies within any state. Various issues pertaining to the laws of the State of
Oklahoma are addressed in the opinion of Derrick & Briggs, LLP, separately provided to you. We express no opinion with respect
to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have,
with your consent, assumed such matters.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1. When
the Applicable Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when the
specific terms of a particular series of Debt Securities have been duly established in accordance with the terms of the Applicable Indenture
and authorized by all necessary corporate action of the Company, and such Debt Securities have been duly executed, authenticated, issued
and delivered against payment therefor in accordance with the terms of the Applicable Indenture and in the manner contemplated by the
applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
2. When
the applicable deposit agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Depositary Shares have been duly established in accordance with the terms of the applicable
deposit agreement and authorized by all necessary corporate action of the Company, and such Depositary Shares have been duly executed,
authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable deposit agreement and in the
manner contemplated by the applicable Prospectus and by such corporate action (assuming the underlying securities have been validly issued
and deposited with the depositary), such Depositary Shares will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
3. When
the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of the applicable
warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of the applicable warrant agreement and in the manner contemplated
by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
November 20, 2024
Page 3
4. When
the applicable purchase contract agreement has been duly authorized, executed and delivered by all necessary corporate action of the
Company, and when the specific terms of a particular issue of Purchase Contracts have been duly authorized in accordance with the
terms of the applicable purchase contract agreement and authorized by all necessary corporate action of the Company, and such
Purchase Contracts have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the
terms of the applicable purchase contract agreement and in the manner contemplated by the applicable Prospectus and by such
corporate action (assuming the securities issuable under such Purchase Contracts have been duly authorized and reserved for issuance
by all necessary corporate action), such Purchase Contracts will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
5. When
the applicable unit agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when
the specific terms of a particular issuance of Units have been duly authorized in accordance with the terms of the applicable unit agreement
and authorized by all necessary corporate action of the Company, and such Units have been duly executed, authenticated, issued and delivered
against payment therefor in accordance with the terms of the applicable unit agreement and in the manner contemplated by the applicable
Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Units have been duly authorized and reserved
for issuance by all necessary corporate action), such Units will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
Our opinions are subject to: (i) the effect
of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a
proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of
materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought;
and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of
or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We
express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole
premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or
restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses,
(d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any
provision permitting, upon acceleration of any Debt Securities, collection of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority
of any lien or security interest, (g) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for
hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (h) waivers of
broadly or vaguely stated rights, (i) provisions for exclusivity, election or cumulation of rights or remedies, (j) provisions
authorizing or validating conclusive or discretionary determinations, (k) grants of setoff rights, (l) proxies, powers and trusts,
(m) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (n) any provision
to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect
of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise
provides, and (o) the severability, if invalid, of provisions to the foregoing effect.
November 20, 2024
Page 4
With your consent, we have assumed (a) that each
of the Debt Securities, Depositary Shares, Warrants, Purchase Contracts, Units, the Applicable Indenture, deposit agreements, warrant
agreements, purchase contract agreements, and unit agreements governing such Securities (collectively, the “Documents”)
will be governed by the internal laws of the State of New York, (b) that each of the Documents has been or will be duly authorized, executed
and delivered by the parties thereto, (c) that each of the Documents constitutes or will constitute legally valid and binding obligations
of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms, and (d) that
the status of each of the Documents as legally valid and binding obligations of the parties will not be affected by any (i) breaches of,
or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii)
failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with,
governmental authorities.
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained
in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/
Latham & Watkins LLP |
Exhibit 5.2
November 20, 2024
Expand
Energy Corporation
6100 North Western Avenue
Oklahoma City, Oklahoma 73118
| Re: | Expand
Energy Corporation
- Registration Statement on Form S-3 |
Ladies and Gentlemen:
We
serve as Oklahoma counsel to Expand Energy Corporation, an Oklahoma corporation (the “Company”), in connection
with the registration statement on Form S-3 (the “Registration Statement”), dated as of this date and filed with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the offer and sale under Rule 415 under the Securities Act, of an indeterminate number or amount of:
(i) Shares
of the Company’s common stock, par value $0.01 per share (the “Common Stock”),
(ii) Shares
of the Company’s preferred stock, par value $0.01 per share, in one or more classes or series (the “Preferred Stock”),
(iii) Debt
securities of the Company, which may be either senior or subordinated and may be issued in one or more series, consisting of notes, debentures
or other evidences of indebtedness (the “Debt Securities”),
(iv) Depositary
shares of the Company representing Preferred Stock (the “Depository Shares”),
(v) Warrants
of the Company to purchase one or more classes or series of the securities registered under the Registration Statement (the “Warrants”),
(vi) Share
purchase contracts to purchase from the Company or sell to the Company shares of its Common Stock or Preferred Stock or other securities
(the “Purchase Contracts”), and
(vii) Units
consisting of one or more shares of Common Stock, shares of Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts,
or any combination of such securities (“Units”) (items (i) through (vii) above are collectively referred
to as the “Securities”).
We are providing this
opinion letter (“Opinion Letter”) to fulfill the requirements of Item 601(b)(5) of Regulation S-K under
the Securities Act.
The Securities will be
offered in amounts, at prices, and on terms to be determined at the time of sale and to be set forth in one or more supplements (each,
a “Prospectus Supplement”) to the prospectus contained in the Registration Statement (the “Prospectus”).
Capitalized terms not otherwise defined in this Opinion Letter have the meanings ascribed in the Registration Statement.
Expand Energy Corporation
November 20, 2024
Page 2
In preparing this Opinion
Letter, we have examined (i) the certificate of incorporation and bylaws (the “Organizational Documents”) of
the Company, (ii) the Registration Statement and its exhibits, and (iii) originals or copies certified or otherwise identified
to our satisfaction of such other instruments and other certificates of public officials and of officers and representatives of the Company
as we have deemed appropriate as a basis for our opinions.
We have assumed: (i) the
genuineness of any signatures on all documents we have reviewed; (ii) the legal capacity of natural persons who have executed all
documents we have reviewed; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to originals
of all documents submitted as copies and the authenticity of the originals of such copies; (v) the truth, accuracy and completeness
of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed
and relied upon; (vi) the accuracy, completeness and authenticity of certificates of public officials; (vii) that the Registration
Statement and the Organizational Documents of the Company, amended to this date, will not have been amended after this date in a manner
that would affect the validity of our opinions; (viii) when any shares of Common Stock or Preferred Stock are sold, that the Company
shall have such number of shares of Common Stock or Preferred Stock authorized and created and available for issuance; (ix) that
any securities issuable upon conversion, exchange, redemption or exercise of any of the Securities being offered (a “Convertible
Security”) will be duly authorized, created, and if appropriate, reserved for issuance upon such conversion, exchange, redemption
or exercise; and (x) that any definitive purchase, underwriting or similar agreement (a “Definitive Purchase Agreement”)
will constitute the valid and legally binding obligation of each Company that is a party to the Definitive Purchase Agreement, enforceable
against such Company in accordance with its terms. We have relied upon a certificate and other assurances of officers of the Company
as to factual matters without having independently verified such factual matters.
We have further assumed
that:
(i) The
Company will receive the consideration for the Securities authorized by the board of directors of the Company (the “Board”),
which consideration for the Common Stock and Preferred Stock will comply with Section 1034 of the Oklahoma General Corporation Act;
(ii) Any
certificates for the Common Stock or Preferred Stock will be in a form approved by the Board and otherwise compliant with law, and will
have been duly executed, countersigned, registered and delivered;
Expand Energy Corporation
November 20, 2024
Page 3
(iii) The
Registration Statement, and any amendments (including post-effective amendments), will have become effective and will comply with applicable
law;
(iv) A
Prospectus Supplement will comply with applicable law and will have been prepared and filed with the Commission describing any Securities
offered at such time;
(v) The
Securities will be issued and sold in compliance with Federal and state securities laws and in the manner stated in the Registration
Statement and any appropriate Prospectus Supplement; and
(vi) All
corporate or other action required to be taken by the Company to duly authorize each proposed issuance of the Securities and any related
documentation, including the execution (in the case of certificated Securities), delivery and performance of the Securities, and the
applicable Definitive Purchase Agreement and other related documentation shall have been duly completed and shall remain in full force
and effect.
Our opinions are limited
to matters governed by the laws of the State of Oklahoma, and we express no opinion as to the laws of any other jurisdiction or as to
the effect of or compliance with any state securities or blue sky laws.
Based upon the foregoing
and on such legal considerations as we deem relevant, and subject to the assumptions, limitations and qualifications set forth in this
Opinion Letter and in reliance on the statements of fact contained in the documents we have examined, we are of the opinion that:
1. The
Company (a) is validly existing as a corporation under the laws of the State of Oklahoma, (b) is in good standing under such
laws, (c) has the corporate power and authority under such laws to issue the Debt Securities and to execute and deliver, and incur
and perform all of its obligations established under the forms of securities filed as exhibits to the Registration Statement, and (d) has
the corporate power and authority under such laws to issue the Depositary Shares, Warrants, Purchase Contracts and Units and to execute
and deliver, and incur and perform generally its obligations under, deposit agreements, warrant agreements, and unit agreements.
2. The
Board has taken all necessary corporate action under Oklahoma law to authorize and approve the execution and filing of the Registration
Statement.
3. The
Common Stock to be offered and issued under the Registration Statement will be validly issued, fully paid and nonassessable, upon (a) the
taking by the Board of all necessary corporate action to authorize and approve the issuance of the Common Stock, the terms of the offering,
and related matters, (b) the establishment of the terms of the issuance and sale of the Common Stock so as to not violate any applicable
law, the Company’s Organizational Documents, or result in a default under or a breach of any agreement or instrument binding upon
the Company and so as to comply with any requirements or restrictions imposed by any court, regulatory authority or other governmental
body having jurisdiction over the Company, and (c) the issuance and delivery of the Common Stock on behalf of the Company against
proper payment (i) in accordance with a Definitive Purchase Agreement approved by the Board or (ii) upon exercise, conversion
or exchange of Convertible Securities as approved by the Board.
Expand Energy Corporation
November 20, 2024
Page 4
4. The
Preferred Stock to be offered and issued under the Registration Statement will be validly issued, fully paid and nonassessable, upon
(a) the taking by the Board of all necessary corporate action to authorize and approve the issuance of the Preferred Stock, the
terms of the offering, and related matters, (b) the establishment of the terms of the issuance and sale of the Preferred Stock so
as to not violate any applicable law, the Company’s Organizational Documents, or result in a default under or a breach of any agreement
or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed by any court, regulatory authority
or other governmental body having jurisdiction over the Company, (c) the filing of a certificate of designation for such series
of Preferred Stock with the Office of the Secretary of State of the State of Oklahoma in conformity with the Company’s Organizational
Documents and with applicable law, and (d) the issuance and delivery of the Preferred Stock on behalf of the Company against proper
payment (i) in accordance with a Definitive Purchase Agreement approved by the Board or (ii) upon exercise, conversion or exchange
of Convertible Securities as approved by the Board.
We hereby consent to
the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required
under Section 7 of the Securities Act or the applicable rules and regulations of the Commission.
| |
Very truly yours, |
| |
|
| |
/s/ Derrick & Briggs, LLP |
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of Expand Energy Corporation (formerly known as Chesapeake Energy Corporation)
of our report dated February 24, 2022 relating to the financial statements of Chesapeake Energy Corporation (Predecessor), which
appears in Chesapeake Energy Corporation’s Annual Report on Form 10-K for the year ended December 31, 2023. We also consent
to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Oklahoma City, Oklahoma
November 20, 2024
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Expand Energy Corporation (formerly known as Chesapeake Energy Corporation) of our report dated February 21,
2024 relating to the financial statements and the effectiveness of internal control over financial reporting of Chesapeake Energy Corporation
(Successor), which appears in Chesapeake Energy Corporation’s Annual Report on Form 10-K for the year ended December 31,
2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Oklahoma City, Oklahoma
November 20, 2024
Exhibit 23.5
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of Expand Energy Corporation
of our report dated February 22, 2024 relating to the financial statements and the effectiveness of internal control over financial
reporting, which appears in Southwestern Energy Company's Annual Report on Form 10-K for the year ended December 31, 2023. We
also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
November 20, 2024
Exhibit 23.6
CONSENT OF INDEPENDENT
PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the inclusion in or incorporation
by reference into the Registration Statement on Form S-3 (including any amendments or supplements thereto, related appendices, and financial
statements) of Expand Energy Corporation of our audit letter, dated February 5, 2024, with respect to estimates of reserves and future
net revenues to the Chesapeake Energy Corporation interest, as of December 31, 2023. We also hereby consent to all references to our firm
or such reports included in or incorporated by reference into the Registration Statement. We also consent to use of our name as it appears
under "Experts".
| |
NETHERLAND,
SEWELL & ASSOCIATES, INC. |
| |
|
| |
|
| |
By: |
/s/
Eric J. Stevens, P.E. |
| |
|
Eric
J. Stevens, P.E. |
| |
|
President
and Chief Operating Officer |
Dallas, Texas
November 20, 2024
Exhibit 23.7
CONSENT OF INDEPENDENT
PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the inclusion in or incorporation
by reference into the Registration Statement on Form S-3 (including any amendments or supplements thereto, related appendices, and financial
statements) of Expand Energy Corporation of our audit letter, dated February 14, 2024, with respect to estimates of reserves and future
net revenues to the Southwestern Energy Company interest, as of December 31, 2023. We also hereby consent to all references to our firm
or such reports included in or incorporated by reference into the Registration Statement. We also consent to use of our name as it appears
under "Experts".
| |
NETHERLAND,
SEWELL & ASSOCIATES, INC. |
| |
|
| |
|
| |
By: |
/s/
Eric J. Stevens, P.E. |
| |
|
Eric
J. Stevens, P.E. |
| |
|
President
and Chief Operating Officer |
Houston, Texas
November 20, 2024
Exhibit 25.1
8SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO
DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
REGIONS
BANK
(Exact name of trustee as specified in its charter)
| Alabama |
63-0371391 |
| (Jurisdiction
of incorporation or |
(I.R.S.
Employer |
| organization
if not a U.S. national bank) |
Identification
No.) |
| 1900
Fifth Avenue North |
|
| Birmingham,
Alabama |
35203 |
| (Address
of principal executive offices) |
(Zip
code) |
Corporation Service Company, Inc.
641 South Lawrence Street
Montgomery, AL 36104
1-866-403-5272
(Name, address
and telephone number of agent for service)
EXPAND ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
Oklahoma
(State or other jurisdiction of
incorporation or organization) |
|
73-1395733
(IRS Employer
Identification Number) |
6100 North Western Avenue
Oklahoma City, OK 73118
(405) 848-8000
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
Senior Debt Securities
| Item 1. | General Information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve
Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309
Alabama State
Banking Department, 401 Adams Ave., Montgomery, Alabama 36104
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise
corporate trust powers.
| Item 2. | Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. |
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the
obligor is not in default as provided under Item 13.
| Item 15. | Foreign Trustee. |
Not applicable. |
| Item 16. | List of Exhibits. |
List below all exhibits filed as a part of this Statement of Eligibility. |
| Exhibit 1. |
Articles of Amendment to Articles of Incorporation, including Restated Articles of Incorporation of the Trustee (incorporated by reference to Exhibit 1 to the Trustee’s Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-3 (File No. 333-223626) filed with the Securities and Exchange Commission). |
| |
|
| Exhibit 2. |
Not applicable. |
| |
|
| Exhibit 3. |
Authorization of the Trustee to exercise corporate trust powers (incorporated by reference to Exhibit 3 to the Trustee’s Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-3 (File No. 333-202769) filed with the Securities and Exchange Commission). |
| |
|
| Exhibit 4. |
A copy of the bylaws of the trustee as now in effect (incorporated by reference to Exhibit 4 to the Trustee’s Form T-1 filed as Exhibit 25.1 to the Registration Statement on Form S-4 (File No. 333-227903) filed with the Securities and Exchange Commission). |
| |
|
| Exhibit 5. |
Not applicable. |
| |
|
| Exhibit 6. |
The consent of the trustee required by Section 321(b) of the Act. |
| |
|
| Exhibit 7. |
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
| |
|
| Exhibit 8. |
Not applicable. |
| |
|
| Exhibit 9. |
Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, as amended, the trustee, Regions Bank, a state-chartered bank organized under the laws of the state of Alabama, has duly
caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Dallas
and the State of Texas on the 20th day of November 2024.
| |
REGIONS
BANK |
| |
|
| |
s/
Shawn Bednasek |
| |
Senior
Vice President |
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial
or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request
therefor.
Dated: November 20, 2024
| |
Very
truly yours, |
| |
|
| |
REGIONS
BANK |
| |
|
| |
s/
Shawn Bednasek |
| |
Senior
Vice President |
Exhibit 7
REGIONS BANK
Balance Sheet
From
The Consolidated Report
Condition
As of the close of business
on September 30, 2024
| Regions Bank - FDIC Certificate Number: 12368
Reporting Period: September 30, 2024 October 23, 2024 9:57 AM
Consolidated Report of Condition for Insured Banks
and Savings Associations for September 30, 2024
FFIEC 031
Page 16 of 86
RC-1
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of
the last business day of the quarter.
Schedule RC—Balance Sheet
Dollar Amounts in Thousands RCFD Amount
Assets
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1).........................................................................................
b. Interest-bearing balances (2)....................................................................................................................................
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) (3).............................................................................
b. Available-for-sale debt securities (from Schedule RC-B, column D).........................................................................
c. Equity securities with readily determinable fair values not held for trading (4).......................................................
3. Federal funds sold and securities purchased under agreements to resell:
0081 3,411,000
0071 7,677,000
JJ34 2,787,000
1773 28,679,000
JA22 604,000
a. Federal funds sold............................................................................................................................................
b. Securities purchased under agreements to resell (5,6)...................................................................................
RCON B987 0
RCFD B989 0
4. Loans and lease financing receivables (from Schedule RC-C):
a. Loans and leases held for sale..................................................................................................................................
RCFD
5369 516,000
b. Loans and leases held for investment.............................................................................
c. LESS: Allowance for credit losses on loans and leases................................................
B528 96,789,000
3123 1,607,000
d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c).........................................................
5. Trading assets (from Schedule RC-D)...........................................................................................................................
6. Premises and fixed assets (including right-of-use assets).....................................................................................
7. Other real estate owned (from Schedule RC-M)..........................................................................................................
8. Investments in unconsolidated subsidiaries and associated companies.....................................................................
9. Direct and indirect investments in real estate ventures..............................................................................................
10. Intangible assets (from Schedule RC-M)......................................................................................................................
11. Other assets (from Schedule RC-F) (6).........................................................................................................................
12. Total assets (sum of items 1 through 11).....................................................................................................................
Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, Part I)
B529 95,182,000
3545 7,000
2145 2,109,000
2150 16,000
2130 170,000
3656 0
2143 6,438,000
2160 8,789,000
2170 156,385,000
RCON
2200 128,575,000
(1) Noninterest-bearing (7)....................................................................................
(2) Interest-bearing................................................................................................
RCON 6631 40,060,000
RCON 6636 88,515,000
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, Part II)
RCFN
2200 0
(1) Noninterest-bearing.........................................................................................
(2) Interest-bearing................................................................................................
RCFN 6631 0
RCFN 6636 0
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased in domestic offices (8)..............................................................................................
b. Securities sold under agreements to repurchase (9).......................................................................................
15. Trading liabilities (from Schedule RC-D).............................................................................................................
16. Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)..........................................
RCON B993 0
RCFD B995 0
RCFD 3548 0
RCFD 3190 5,170,000
1 Includes cash items in process of collection and unposted debits.
2 Includes time certificates of deposit not held for trading.
3 Institutions should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8,
column A, less Schedule RI-B, Part II, item 7, column B.
4 Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for "Securities Activities" for further detail on
accounting for investments in equity securities.
5 Includes all securities resale agreements, regardless of maturity.
6 Institutions should report in items 3.b and 11 amounts net of any applicable allowance for credit losses.
7 Includes noninterest-bearing, demand, time, and savings deposits.
8 Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, "Other borrowed money."
9 Includes all securities repurchase agreements, regardless of maturity.
1.a.
1.b.
2.a.
2.b.
2.c.
3.a.
3.b.
4.a.
4.b.
4.c.
4.d.
5.
6.
7.
8.
9.
10.
11.
12.
13.a.
13.a.1.
13.a.2.
13.b.
13.b.1.
13.b.2.
14.a.
14.b.
15.
16. |
| Regions Bank - FDIC Certificate Number: 12368
Reporting Period: September 30, 2024 October 23, 2024 9:57 AM
Schedule RC—Continued
FFIEC 031
Page 17 of 86
RC-2
19.
20.
21.
Memoranda
To be reported with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external
auditors as of any date during 2023.................................................................................................................................
1a = An integrated audit of the reporting institution's financial 2b = An audit of the reporting institution's parent holding statements and its internal control
over financial reporting company's consolidated financial statements only conducted in conducted in accordance with the standards of the
American accordance with the auditing standards of the AICPA or the Institute of Certified Public Accountants (AICPA) or the Public
PCAOB by an independent public accountant that submits Company Accounting Oversight Board (PCAOB) by an indepen- a report
on the consolidated holding company (but not on dent public accountant that submits a report on the institution the institution separately)
1b = An audit of the reporting institution's financial statements only 3 = This number is not to be used
conducted in accordance with the auditing standards of the 4 = Directors' examination of the bank conducted in accordance
AICPA or the PCAOB by an independent public accountant that with generally accepted auditing standards by a certified public
submits a report on the institution accounting firm (may be required by state-chartering authority)
2a = An integrated audit of the reporting institution's parent 5 = Directors' examination of the bank performed by other external
holding company's consolidated financial statements and its auditors (may be required by state-chartering authority)
internal control over financial reporting conducted in 6 = Review of the bank's financial statements by external auditors
accordance with the standards of the AICPA or the PCAOB by 7 = Compilation of the bank's financial statements by external
an independent public accountant that submits a report on the auditors
consolidated holding company (but not on the 8 = Other audit procedures (excluding tax preparation work)
institution separately) 9 = No external audit work
To be reported with the March Report of Condition.
2. Bank's fiscal year-end date (report the date in MMDD format)......................................................................................
1 Includes limited-life preferred stock and related surplus.
2 Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow
hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement plan adjustments.
3 Includes treasury stock and unearned Employee Stock Ownership Plan shares.
23.
24.
25.
26.a.
26.b.
26.c.
27.a.
27.b.
28.
29.
M.1.
M.2.
Dollar Amounts in Thousands RCFD Amount
Liabilities - continued
17. and 18. Not applicable
19. Subordinated notes and debentures (1)......................................................................................................................
20. Other liabilities (from Schedule RC-G).........................................................................................................................
21. Total liabilities (sum of items 13 through 20)..............................................................................................................
22. Not applicable
Equity Capital
Bank Equity Capital
23. Perpetual preferred stock and related surplus............................................................................................................
24. Common stock.............................................................................................................................................................
25. Surplus (excludes all surplus related to preferred stock).............................................................................................
26. a. Retained earnings....................................................................................................................................................
b. Accumulated other comprehensive income (2).......................................................................................................
c. Other equity capital components (3)........................................................................................................................
27. a. Total bank equity capital (sum of items 23 through 26.c)........................................................................................
b. Noncontrolling (minority) interests in consolidated subsidiaries............................................................................
28. Total equity capital (sum of items 27.a and 27.b)........................................................................................................
29. Total liabilities and equity capital (sum of items 21 and 28)........................................................................................
3200 496,000
2930 4,451,000
2948 138,692,000
3838 0
3230 0
3839 16,399,000
3632 3,137,000
B530 (1,894,000)
A130 0
3210 17,642,000
3000 51,000
G105 17,693,000
3300 156,385,000
RCFD Number
6724 NR
RCON Date
8678 NR |
S-3
S-3ASR
EX-FILING FEES
0000895126
EXPAND ENERGY Corp
0000895126
2024-11-15
2024-11-15
0000895126
1
2024-11-15
2024-11-15
0000895126
2
2024-11-15
2024-11-15
0000895126
3
2024-11-15
2024-11-15
0000895126
4
2024-11-15
2024-11-15
0000895126
5
2024-11-15
2024-11-15
0000895126
6
2024-11-15
2024-11-15
0000895126
7
2024-11-15
2024-11-15
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
EXPAND ENERGY Corp
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Debt
|
Debt Securities
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Common Stock, par value $.00001 per share
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
3
|
Equity
|
Preferred Stock, par value $.00001 per share
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
4
|
Equity
|
Depositary Shares
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Warrants
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
6
|
Other
|
Purchase Contracts
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
7
|
Other
|
Units
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
|
|
|
2
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(3) Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan.
|
|
|
|
3
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(3) Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan.
|
|
|
|
4
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(4) The depositary shares being registered will be evidenced by depositary receipts issued under a deposit agreement. If the registrant elects to offer fractional interests in preferred stock to the public, depositary receipts will be distributed to the investors purchasing the fractional interests, and the preferred stock will be issued to the depositary under the deposit agreement.
|
|
|
|
5
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
|
|
|
6
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
|
|
|
7
|
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(5) Each unit will be issued under a unit agreement or indenture and will represent an interest in any combination of two or more securities, which may or may not be separable from one another.
|
|
|
v3.24.3
| X |
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v3.24.3
Offerings
|
Nov. 15, 2024 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Stock, par value $.00001 per share
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(3) Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Stock, par value $.00001 per share
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(3) Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan then in effect, if applicable under the terms of any such plan.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Depositary Shares
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(4) The depositary shares being registered will be evidenced by depositary receipts issued under a deposit agreement. If the registrant elects to offer fractional interests in preferred stock to the public, depositary receipts will be distributed to the investors purchasing the fractional interests, and the preferred stock will be issued to the depositary under the deposit agreement.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Warrants
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
| Offering: 6 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Purchase Contracts
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
|
| Offering: 7 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Units
|
| Fee Rate |
0.01531%
|
| Offering Note |
(1) An unspecified and indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at indeterminate prices or upon exercise, conversion or exchange of other securities registered hereby.
(2) In accordance with Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the registration fee. Any registration fee will be paid subsequently on a pay-as-you-go basis in accordance with Rule 457(r).
(5) Each unit will be issued under a unit agreement or indenture and will represent an interest in any combination of two or more securities, which may or may not be separable from one another.
|
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v3.24.3
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